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United States v. Etienne

United States District Court, N.D. California

October 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCUS ETIENNE, et. al., Defendants.

          ORDER RE SECOND RENEWED MOTION TO COMPEL OPD AND SLPSO MATERIALS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this prosecution under the Racketeer Influenced and Corrupt Organizations Act, the Violent Crimes in Aid of Racketeering Act, and other penal statutes, defendants move to compel disclosure of materials from the Oakland Police Department and the St. Landry Parish Sheriff's Office under Brady.

         STATEMENT

         Previous orders have described the facts of this case. In short, defendant Marcus Etienne and Mario Robinson have been indicted for, among other things, a conspiracy to distribute and possess with intent to distribute marijuana as well as murder in connection with the conspiracy. The Etienne enterprise is based out of St. Martin Parish, Louisiana and allegedly operates throughout Louisiana, California, and Texas. Relevant to this order is the allegation defendant Burte Gucci Rhodes murdered victim T.T., a previous member of the Etienne enterprise, in Oakland, at the behest of defendants Etienne and Robinson. The Oakland Police Department (OPD) investigated T.T.'s murder.

         In August 2018, defense counsel submitted an ex parte application for the issuance of a subpoena duces tecum under Rule 17(c) directing the OPD to produce specified documents relating to its investigation of the homicide of victim T.T. In September 2018, the City of Oakland moved to quash the subpoena and the government joined the motion. Multiple hearings were held on the matter including an evidentiary hearing in which OPD Sergeant Richard Vass testified as to the existence of certain documents sought by the subpoena, specifically officer notes of witness interviews, which had not been produced to the defense but which the government claimed to have in its possession. Throughout the process, the government denied any “joint investigation” with OPD and instead claimed to have “adopted” the investigation from Oakland when it turned over its entire investigatory file. The government also, however, stated in its motion for joinder in OPD's motion to quash and motion to quash subpoena:

However, even if the government did not have valid witness safety concerns, the government has no obligation to produce these reports under Rule 16. The OPD reports are not subject to Rule 16 discovery because they are “reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” Fed. R. Crim. P. 16(a)(2). The Ninth Circuit held in United States v. Fort, 472 F.3d 1106 (2007), that Rule 16(a)(2)'s exemption from discovery extends to police reports “created prior to federal involvement but relinquished to federal prosecutors to support a unified prosecution of Defendants for the same criminal activity that was the subject of the local investigation.” Id. at 1120. Although the government does have witness safety concerns given the nature of the charges in this case, the Ninth Circuit's “interpretation of Rule 16(a)(2) applies regardless of the content of the non-disclosed inculpatory information and regardless of the potential effect of disclosure on witness safety.” Id. at 1110 n.1.
Nor has the government waived the protections of Rule 16(a)(2) by producing redacted copies of the police reports to defendant Etienne. Fort, 472 F.3d at 1120. By “systematically redacting all witness locator information, ” the government has demonstrated that “it did not intentionally or voluntarily relinquish its rights under Rule 16(a)(2) to hold back this information from discovery.” Id. at 1121 (emphasis in original).

Dkt. No. 232 at 4 (emphasis added). A December 2018 order granted the motion to quash on the ground the subpoena was too broad. The order, nonetheless, allowed defense counsel to copy and inspect certain officer notes that had been lodged in camera pursuant to an attorney's-eyes-only protective order.

         In parallel with the above, in September 2018, defense counsel submitted an ex parte application for the issuance of a subpoena duces tecum directing the St. Landry Parish Sheriff's Office to produce specific documents related to the investigation of a previous assault on T.T. as well as the homicide of another victim allegedly related to the Etienne enterprise. In October 2018, the SLPSO moved to quash the subpoena and the government joined the motion. A hearing was held on the matter following which the SLPSO produced the responsive materials in its possession for in camera review. A November 2018 order allowed defense counsel to review the lodged materials in the Court's jury room.

         Meanwhile also in November 2018, defendants Etienne and Robinson filed a joint motion to compel disclosure in which the defense identified a number of items they had requested be produced by the government, but which the government had failed to produce. One of these items included Brady materials in possession of the OPD such as interviews with victim T.T. prior to his death. A December 2018 order stated, “[t]o the extent defendants move to compel answers to [requests for information], the motion is denied. As to the remaining evidentiary items raised in defendants' motion, counsel for the parties shall meet and confer by December 21, following which defendants may renew their motion with respect to any outstanding issues.” The parties met and conferred on December 20, January 28, and January 30. In February 2019, defense counsel met with and sent a letter to the government requesting items that had yet to be produced including the OPD Brady materials. The government failed to respond. In June 2019, defendants filed a renewed motion to compel.

         In June 2019, the government filed a supplemental memorandum stating Sergeant Vass was a member of the prosecution team given his assignment as an FBI Task Force Officer to the matter and that the government is thus responsible for Brady materials in his possession. The government, however, also contended it has no Brady obligation as to the rest of OPD because the OPD does not operate at the government's direction. Defendants filed a supplemental response in July 2019. Defendants then filed a second motion to compel in August 2019, requesting again, among other things, the Brady materials in possession of the OPD and the SLPSO. The parties were able to resolve all issues except the OPD and SLPSO Brady materials request.

         ANALYSIS

         Brady v. Maryland, requires prosecutors to disclose materially exculpatory evidence in the government's possession to the defense. 373 U.S. 83 (1963). Kyles v. Whitley further held that the prosecution has an affirmative duty to learn of, and disclose, any favorable evidence known to “others acting on the government's behalf in the case, including the police.” 514 U.S. 419, 437 (1995). In Kyles, petitioner Curtis Kyles petitioned for habeas relief claiming a Brady violation. Specifically, he contended the government failed to provide him with the following evidence: contemporaneous eyewitness statements taken by the New Orleans police following the murder in question, statements made to police by an informant who was never called to testify, and a computer printout of license numbers of cars parked at the crime scene on the night of the murder, which did not list the number of Kyles's car. Id. at 428-29. The government argued that because some of the favorable evidence at issue was not disclosed to the prosecutor until after trial, it ...


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